Examination of Witnesses (Questions 69-79)
PROFESSOR IAIN
SCOBBIE
11 FEBRUARY 2009
Q60 Chairman: What plea would
be relevant?
Professor Scobbie:
It would be, in that case, that they were taking defensive or
offensive action. They would be doing what people do in an armed
conflict, which is to fight one another.
Q61 Chairman: What if the British
Government put out a statement, as the Foreign Secretary did,
or as the Americans have done, that Israel has a right to self-defence?
Professor Scobbie: I would say
that they were not using it in a very strict legal sense. It is
like the difference between negligence in law and negligence in
everyday speech. Negligence in law does not mean carelessness.
Self-defence is the same. It is a very narrow legal doctrine.
It is better that it is not disrupted.
Q62 Sir John Stanley: Professor,
I want to come to two specific weapons on which allegations have
been made that they may have been used by the Israelis in the
war contrary to international law. You refer to the fact that
the Israelis are not signatories to the Protocol to the Convention
on Certain Conventional Weapons, which is the protocol on prohibitions
or restrictions on the use of certain incendiary weapons, which
is Protocol III, and that is the one that governs the use of white
phosphorus. Foreign Office paper GSME(G)01 on international law
and white phosphorus is very clear. It says: "It is prohibited
in all circumstances to make the civilian population as such,
individual civilians or civilian objects the object of attack
by incendiary weapons." Against that background, and recognising
that the Israelis regrettably have not signed this protocol, there
does appear to be very clear evidence that white phosphorus was
used against civilians. If I can just give one specific example,
in the detailed analysis that was made in The Independent on
Sunday on 25 January, reference is made to the case of an
18-year-old high-school student, Mahmoud al-Jamal, who was hit
by what apparently looks like a phosphorus shell. He was taken
into the Gaza City Shifa hospital severely burned, and it is reported
that part of his body was still smouldering when he was being
anaesthetised in theatre. The head of the burns unit in the hospital,
Dr Nafez abu Shaban, is quoted as saying: "A piece extracted
itself from his body and burned the anaesthetist on his chest."
That would appear to be very clear corroboration by a top medical
surgeon of white phosphorus being inside this young man's body
and falling on to an adjacent body and burning it. On the basis
of this evidence, and indeed plenty more, do you accept that there
appears to have been clear use of white phosphorus against civilians
in this recent war?
Professor Scobbie: There may be
use of white phosphorus. That does not necessarily mean it is
illegal, or that the use is illegal. It depends on the circumstances
of the use. White phosphorus is not in itself an incendiary weapon
as that is understood in international law, because an incendiary
weapon is one whose primary purpose is to cause damage or injury
through burning. White phosphorus can be lawfully used as an illuminant
or as a smokescreen to cover troop movements. Its primary function
is not as an incendiary weapon. What we really have to go to here
are the rules on collateral damage and indiscriminate use of weapons.
That really boils down to the circumstances in which these weapons
were used as to whether that is unlawful or not as a matter of
the laws of armed conflict. If you want to take it further and
ask, even if we assume there is a breach of the laws of armed
conflict, does that constitute an international crime, that is
a whole different ball game, because then you have to prove the
characteristic aspects of any criminal offence, which is the act
and the mental intention. And that really does not answer your
question, does it?
Q63 Sir John Stanley: Well, thank
you for giving us the legal view. I want to turn to another weapon,
and this is in relation to a protocol which the Israeli Government
have signed. This is the UN convention which prohibits "the
use of any weapon, the primary effect of which is to injure by
fragments which, in the human body, escape detection by X-rays."
These are the so-called DIME weapons—the acronym for dense
inert metal explosive. These weapons are effectively a stealth
method of killing. The victim dies, but no fragments detectable
by X-rays are left in the victim's body. Again, I am struck by
another doctor, also in that Shifa hospital, a surgeon. He is
quoted as saying, "We have many cases of amputations and
vascular reconstructions where patients would be expected to recover
in the normal way. But to our surprise, many of them died an hour
or two after the operation. It is traumatic." Have you any
comments on why patients who should have recovered from surgery,
apparently for some unexplained reason, suddenly died?
Professor Scobbie: No, because
I am not a medical doctor. I think the point to emphasise there
is the phrase you brought up at the start: indiscriminate use.
The legality of weapons use depends on the circumstances.
Q64 Sir John Stanley: Do you agree
that the Israeli Government are a signatory to this convention,
and therefore have legally signed up not to use DIME weapons?
Professor Scobbie: They are a
signatory to that protocol, yes.
Q65 Sir John Stanley: Therefore,
if, possibly and probably, given the nature of these weapons,
it could be shown that they had used DIME weapons, that would
be in breach of international law?
Professor Scobbie: If they had
been used indiscriminately.
Sir John Stanley: Indiscriminately or
at all?
Professor Scobbie: I think it
is indiscriminate use. I am pretty sure, but give me a minute
and I can check.
Chairman: Perhaps you could send us a
note.[5]
Q66 Sir John Stanley: This is
very important: it would be very worrying if there was an "indiscriminate"
test, because these weapons, I would have thought, by their very
nature are extremely immoral, in so far as they make it impossible
to detect the source of the killing.
Professor Scobbie: Yes, but I
think it boils down to the law of armed conflict. It is all about
the law that regulates killing people and blowing things up. That
is why it is better not to call it international humanitarian
law, because there is very little in that body of law that is
humanitarian, apart from some basic general principles of minimising
suffering.
Q67 Sir John Stanley: May I lastly
ask you a general question in relation to the conduct of both
sides in this recent conflict in Gaza? From where you stand, from
a legal standpoint, are there any areas of international law that
you consider may have been breached either by the Israelis or
by Hamas?
Professor Scobbie: Yes. Let us
start with stuff coming out of Gaza. The nature of the missiles
that are launched is indiscriminate, so I would say that is a
breach of international law. A probable breach by the Israelis—again
on which there is a degree of scholarly consensus among international
lawyers—is the targeting of police. The police in Gaza—although
some, but probably not all, were members of Hamas—were not
part of the military wing. There is a presumption almost that
police are civilians. So when, for instance, Israel attacked the
graduation parade of police in Gaza, that would be seen as a direct
attack on the civilian population. From what I can gather from
various reports in the Israeli press, that type of attack on police
forces was an issue which caused controversy among the legal advisers
to the IDF.
Q68 Sir John Stanley: In an earlier
session, which I think you were listening to—
Professor Scobbie: I only
caught the end of it.
Sir John Stanley: What about the loss
of life of over 400 children and 100 women?
Professor Scobbie: That boils
down to whether those deaths were excessive in relation to the
military objective being sought in the given attack. It is down
to circumstances and the need for hard evidence.
Q69 Chairman: The UN Secretary-General
described the Israeli action as disproportionate. The Israeli
Prime Minister also referred to the fact that Israel would respond
disproportionately at some point. Does the word disproportionate
have a specific legal significance? Does military action not have
to be disproportionate in order to comply with international law?
Professor Scobbie: Yes, the word
does have a legal significance. In some ways it is the lynchpin
of the law regarding self-defence, which I have argued does not
apply here. Actions taken in self-defence must be proportionate.
That is also the key to the application of the targeting rules
and the laws of armed conflict. The basic rule regarding an attack
on a military objective is that the effects on the civilian population
must not be disproportionate in relation to the military advantage
anticipated. That boils down to the fact that damage done to civilian
property and civilians must not be excessive in relation to the
military advantage anticipated by a given attack.
Q70 Chairman: Who is to make that
judgment? Is it the judgment of the military commanders on the
ground, or is there some outside judgment? Who decides whether
something is excessive or not?
Professor Scobbie: Initially it
is the military commander on the ground. That does not preclude
subsequent verification by an international fact-finding team,
for instance. There is provision for that in Additional Protocol
I, although Israel is not a party to that. The first stage of
the Gaza conflict looked very much like Israel's practice regarding
targeted killings, which it has done in the past in both the West
Bank and in Gaza. Missile strikes were sent in essentially to
kill particular individuals. That policy was litigated before
the Israel High Court and in its decision, the High Court said
that proportionality depends on the circumstances. Each of those
attacks had to be proportionate, and there had to be an ex post
facto and independent investigation into whether that was the
case. In the Targeted Killings case, the Israel High Court gave
an example. It gave an almost implicit ruling that a targeted
killing in Gaza had been disproportionate. It said, "Take
the usual case of a combatant, or a terrorist sniper shooting
at soldiers or civilians from his porch. Shooting at him is proportionate,
even if as a result, an innocent civilian neighbour or passerby
is harmed ... However, that is not the case if the building is
bombed from the air, and scores of its residents and passersby
are harmed." Aharon Barak, then President Emeritus [of the
High Court], went on to say that there has to be independent verification
after the fight. If we look at the first phase before troops were
sent in on the ground, it looked like a classic and concerted
targeted killings campaign.
Q71 Mr Moss: You answered the
question that I was going to pose. Perhaps you could go over the
ground again for clarification purposes. If fire is emanating
in this military conflict from a building, civilian or otherwise,
it is legitimate to fire back on that location as a target. Whether
it destroys a civilian house is irrelevant. The firing emanated
from that source.
Professor Scobbie: Yes, provided
that any collateral damage to civilians would not be excessive.
Q72 Chairman: You are talking
about a conflict in a very densely populated area and, following
on from what Malcolm said, Hamas was in those houses in that area.
How can Israel respond to firing from those densely populated
areas and hit those areas without killing large numbers of civilians?
Professor Scobbie: That would
depend on the tactics that are employed by the IDF. When Israel
and the US make proportionality or collateral damage calculations,
they take into account force protection—the idea that military
casualties must be minimised. What you had in Gaza was, to a great
extent, a long-range campaign where the IDF did not go into close
combat. Where we are dealing with a long-distance campaign we
can expect that civilian casualties will be higher. One way to
minimise that would have been to go into close combat.
Chairman: Which is what happened at a
later stage.
Professor Scobbie: At a later
stage, yes.
Q73 Chairman: What about the distinction
between Hamas fighters and people in the community as a whole?
If you are fighting an organisation where people do not necessarily
have uniforms when they are engaged in military action, is there
any distinction about the response to that? Is anybody who has
taken up arms, whether they are wearing a uniform or some other
distinction, treated differently in terms of response?
Professor Scobbie: Civilians who
take a direct part in hostilities are legitimate targets. Now,
there is the question of what actually amounts to a civilian taking
a direct part in hostilities. This is an area that is quite controversial
on some points and is under examination at the moment by a joint
programme with the International Committee of the Red Cross and
the TMC Asser Institute in the Netherlands. We expect and hope
to see some guidelines coming out of their expert groups fairly
soon. Now, if a civilian takes a direct part in hostilities, he
or she is a legitimate target and he or she loses civilian immunities.
It also means that, on capture, they are not entitled to prisoner-of-war
status.
Q74 Chairman: This is the Guantanamo
problem.
Professor Scobbie: I think that
the Guantanamo problem took that one to extremes.
Chairman: Yes.
Q75 Sir John Stanley: Professor,
there appear to have been a very large number of cases where those
on the ground have maintained that there were, in fact, no Hamas
fighters present in particular buildings that were the subject
of Israeli shellfire and in which civilians were killed. That
happened to the UN building. A Palestinian gynaecologist was interviewed
in detail on "Panorama" last night. When the Israelis
fired a tank shell—which I think killed four of his eight
children as they were doing their homework—into their flat,
he was absolutely clear that there were no Hamas there. There
was the father of The Independent's reporter in Gaza, who
was destroyed alone in his farmhouse near the border, and any
number of others. The point of law that I am asking you is, will
it be contrary to international law to destroy a building containing
civilians, if there were no terrorist presence or military figures
opposing you in that building at the time you shelled it?
Professor Scobbie: In principle,
no, but it is subject to one caveat which might be—
Q76 Sir John Stanley: I am asking:
would it be contrary to international law?
Professor Scobbie: I am sorry;
in that case I mean yes, subject to one caveat: if the building
was seen as one whose destruction or denial was seen to have some
concrete and direct military advantage. If it was a building which
might, for instance, be used as a spy post later on there are
circumstances in which it could be destroyed even if there were
no fighters present. But then the question would be, does it cause
excessive civilian damage?
Q77 Mr Illsley: Let me ask the
same question, but from a slightly different angle. If Hamas fighters
go into a building that is occupied by civilians, does it become
a military target?
Professor Scobbie: In principle
yes, but again we need to go back to the collateral damage calculation.
Q78 Mr Illsley: So it is a question
of the proportionality of the response in using the weapon to
attack that target?
Professor Scobbie: Yes.
Q79 Mr Heathcoat-Amory: May I
ask whether international law has grappled with the problem of
suicide bombing? It is perhaps the most ghastly of all modern
weapons, and there is some evidence, in Israel and more generally
in the Middle East, that suicide bombers are under the control
of an organising power or organisation. If that were shown to
be the case, would that organisation be guilty of a war crime,
and if so, what part of international law has considered that?
Professor Scobbie: You are not
going to like this answer: it depends on the circumstances. Could
this be suicide bombings as in kamikaze pilots?
Mr Heathcoat-Amory: Yes.
Professor Scobbie: Which could
be seen as a perfectly legitimate weapon. Suicide bombings against
a civilian population are unlawful. The war crime, or the breach
of the laws of armed conflict, involved would be a breach of the
prohibition of wilful killing or the direct targeting of civilians.
5 Note by witness: The issue is covered by
Protocol I on Non-Detectable Fragments made to the 1980 Convention
on Certain Conventional Weapons. The entire text of this Protocol
provides: "It is prohibited to use any weapon the primary
effect of which is to injure by fragments which in the human body
escape detection by X-rays". The Protocol therefore imposes
an absolute prohibition. There is no qualification of indiscriminate
use. Israel became a party to this Protocol in March 1995. Back
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